J.S Narang, J.:— The petitioner was selected and appointed as Block Development and Panchayat Officer with effect from September 11, 1982. He was promoted as District Development and Panchayat Officer with effect from May 22, 1992. it was on March 14, 1996, he had been given the officiating charge of Deputy Director Panchayats/Additional Deputy Commissioner(D) copy Annexure P2. A stipulation is contained in the order that the petitioner would continue to draw his pay in the pay scale of District Development and Panchayat Officer and no extra financial benefit would be given to him for this officiating charge. Pursuant to the aforestated order, the petitioner had been performing the duties of the office of Deputy Director or Additional Deputy Commissioner (D) which are claimed to be equivalent posts and are also posts of higher responsibility. It has been averred that the post of Deputy Director/Additional Deputy Commissioner (D) carries higher pay scale. The postings which had been given on officiating basis on the aforestated posts have been appended as Annexures P3 to P8. He submitted a representation dated September 8, 2003 to the concerned quarters for equal pay for equal work for performing the duties of higher responsibilities with effect from 1996. No reply was received pursuant to the representation/communication quarters. Being dissatisfied, the present petition has been filed seeking issuance of a writ of mandamus under Articles 226/227 of the Constitution of India, for directing the respondents to grant the pay ascribed to the post of Deputy Director Panchayats/Addl. Deputy Commissioner (Development) on which post the petitioner has been performing the officiating duty/Current Duty accordingly.

2. Notice of motion had been issued vide order dated April 26, 2004. Respondents have filed a detailed written statement and that the stand of the Government is that the petitioner had earlier filed CWP No. 11241 of 2000, in which he has prayed that the seniority of District Development and Panchayat Officers be finalised and that the petitioner be promoted to the rank of Deputy Director on regular basis from the date junior to him has been promoted.

3. It has also been averred that the persons impleaded as respondents in the aforestated petition, in fact, are senior to the petitioner. He has also further prayed that after considering the claim of the petitioner to the rank of Deputy Director, the service rendered by him on officiating or current duty basis be also counted for the purpose of considering him for promotion to the post of Additional Director and Joint Director. It is also the stand of the government that the petitioner had not been promoted as Deputy Director though he had been asked to work on equivalent Ex cadre posts. Thus, in the absence of having been regularly promoted, the petitioner is not entitled to be consequential benefits in the form of salary or otherwise accordingly. The aforestated petition has been admitted and, therefore, the matter is sub judice. The respondents have not disputed the claim of the petitioner that he had been working and functioning and discharging the responsibilities of the post of Deputy Director or Addl. Deputy Commissioner (Development), as the case may be, though on officiating basis. Reliance has also been placed upon a judgment of learned Single Judge of this Court rendered In re: B.K Dhir… v. State Of Punjab…, CWP No. 9'654 of 1997, decided on November 22, 2002: [2003 (3) SLR 236 (Pb. & Hry.)]. It has also been averred that the petitioner having accepted the condition that he shall perform the duties of Deputy Director without any monetary benefit under any head, is not entitled to claim remuneration payable upon the higher post. It is also the plea of the Government that the seniority of the District Development and Panchayat Officers and Deputy Directors has already been challenged in SLP-C. 97991/2K, 7822-24/2k titled as C.L Premy v. State and that along with that SLPs bearing Nos. 11855/2K and 4119/2K-Joginder Singh v. State of Punjab etc., which are pending in the Hon'ble Supreme Court. It is on these premises that no regular promotion in the rank of Deputy Director could be made and that the petitioner had been given the officiating charge.

4. Learned counsel for the petitioner has argued that since 1996 the petitioner has been performing the duties of Deputy Director/Addl. Deputy Commissioner (D) and that he has superannuated on July 31, 2004. It is the settled law that if an employee is called upon to perform the duties of higher post, he/she shall be entitled to the remuneration payable on that post. Learned counsel has placed reliance upon some judgments rendered by the Hon'ble Supreme Court of India and Has also placed reliance upon the judgments of this Court.

5. The dicta of the Supreme Court as spelt out in the following judgments has been brought to our notice:—

(i) Smt. P. Grover v. State of Haryana, (1983) 4 SCC 291 : AIR 1983 Supreme Court 1060 : [1983 (3) SLR 473 (SC)].

In this case the petitioner was working as a Teacher and due to her extraordinary accomplishments, she was promoted as an acting District Education Officer only two years prior to her superannuation. However, the Government of Haryana had taken a policy decision in 1965 that the services of the Teachers who had received the National or State Awards should be extended until they attain the age of 60 years and that this benefit was to be given on year to year basis. The petitioner was given the benefit and she worked as Principal of a school and finally retired from service on August 31, 1980. There is no rule which was referred to for providing restriction that upon granting promotion on acting basis would not entitle the officer to the pay of the post. Resultantly, the j petitioner had been granted the pay of the post from the date when she had been promoted accordingly.

(ii) Selvaraj v. Lt. Governor of Island, Port Blair, 1998 (4) RSJ 22 : [1998 (3) SLR 770 (SC)].

6. In this, case, the appellant was working as a primary school teacher who was ordered to look after the duties of Secretary (Scouts). The salary was to be drawn against the aforestated post which was admittedly in the higher pay scale than the one given to the appellant on the basis of primary school teacher. The Hon'ble Supreme Court enunciated the principle of “quantum merit” and directed the respondent-authorities that the appellant should be paid as per the emoluments available in the higher pay sale during the time the appellant actually worked on the said higher post though in officiating capacity and not as a regular promotee.

7. Reference has been made to the two Division Bench judgments of this Court which are noticed as under:—

(a) Gurmej Singh v. State of Punjab, 1995 (3) RSJ 491.

In this case, the petitioner was working as a Social Education and Panchayat Officer and he had been given current duty charge of the post of Block Development and Panchayat Officer with effect from December 20, 1988 and he continued to hold such charge till superannuation i.e November 30, 1989. Thus, having discharged the duties on a higher post to which he was otherwise entitled to be considered for promotion, the petitioner was entitled to the emoluments of the said post with all consequential benefits. Reliance has been placed upon the judgment of the apex Court in Smt. P. Grover's case (supra) and CWP No. 13465 of 1991 decided on January 16, 1992.

(b) Balbir Singh Dalai v. State of Haryana, 2002 (3) RSJ 530.

In this case, the petitioners were working as regular Junior Engineers and they were given current duty charge in performing the work and duties of the post of Sub Divisional Officers, which is admittedly a promotional post and is a feeding cadre for the Junior Engineers. Subsequently, they were promoted on regular basis to that post. They claimed that they are entitled to the pay scale of the higher post upon which they have rendered their services as a whole time incumbent, which is also the promotional post. Reference and reliance has been made to Punjab Civil Services Rules 4.4, 4.13, 4.16 and 4.22(i) for the purpose of pay fixation. It has been enunciated that once a person is appointed to hold the full charge of the duties on a higher post even in addition to the duties of his own post, he has to be allowed the pay admissible to him as if he was appointed to officiate in the higher post.

8. We have heard the learned counsel for the parties and have also perused the pleadings and so also the documents appended by way of annexures. We are of the opinion that the petitioner is justified in claiming the higher pay for having performed the duties of Deputy Director of Panchayat/Addl. Deputy Commissioner (Development) from time to time pursuant to the orders passed by the Government, copies of which have been appended as Annexures P2 to P8. It is the settled principle that if a person is asked to perform the duties regularly though in officiating capacity or on current duty charge or as a temporary measure, he would be entitled to the higher pay i.e the pay which is payable while performing the duties in the higher/promotional post. In this regard, it shall be apposite to mention rule 4.22 and 4.13 of the Punjab Civil Services Rules, Vol. 1 Part-I, which read a under:—

4.22 A competent authority may appoint one Government employee to hold substantively, as a temporary measure, or to officiate in, two or more independent posts at one time. In such cases, his pay is regulated as follows:—

(a) the highest pay, to which he would be entitled if his appointment to one of the posts stood alone, may be drawn on account of his tenure of that post;

(b) For each other post he draws such reasonable pay, in no case exceeding half the presumptive pay (excluding overseas pay) of the post, as the competent authority may fix; and

(c) If compensatory allowances are attached to one or more of the posts the draws such compensatory allowances as the competent authority may fix; Provided that such allowances shall not exceed the total of the compensatory allowances attached to all the posts.

Note xx xxx xx”.

4.13 (1) Subject to the provisions of rules 4.22 to 4.24, a Government employee who is appointed to officiate in a post shall not draw a higher than his substantive pay in respect of a permanent post, other than a tenure post, unless the post in which he is appointed to officiate is one enumerated in the schedule to this rule or unless the officiating the appointment involves the assumption of duties and responsibilities of greater importance than those attaching to the post, other than a tenure post on which he holds a lien or would hold a lien had his lien not been suspended:

Provided that the competent authority may exempt from the operation of this rule, any service which is not organised on a time scale basis and in which a system of acting promotions from grade to grade is in force at the time of the coming into force of these rules;

Provided further that the competent authority may specify posts outside the ordinary line of a service the holders of which may, notwithstanding the provisions of this rule and subject to such conditions as the competent authority may prescribe, be given any officiating promotion in the cadre of the service which the authority competent to order promotion may decide and may thereupon be granted the same pay (whether with or without any special pay, if any, attached to such posts) as they would have received if still in the ordinary line.

(2) For the purpose of this rule, the officiating appointment shall not be deemed to involve the assumption of duties or responsibilities of greater importance if the post to which it is made is on the same scale of pay as the permanent post, other than a tenure post, on which he holds a lien or would hold a lien had his lien not been suspended, or on a scale of pay identical therewith.”

Note 1 The words ‘duties’ and responsibilities' used in this rule are to be interpreted in a wide sense as including besides the works to be performed the general responsibilities and liabilities incidental to being member of a particular service. See also note 7 below 4.

4. xx xx xx xx xx”.

The principle of “quantum meruit” (so much as the employee has earned — is founded on premises i.e to pay the employee for doing a thing as much as he has earned or merited; projects where a special contract has been entered into to pay the employee a particular amount or he is entitled to recover equivalent to the value of work that has been put in by him. The employer is obligated to pay to the employee as per the emoluments available in the higher pay scale during the time he/she actually works on the post though it may be in the officiating capacity/as temporary measure and or current duty charge. The rigour of “regular promotee” would not come in the way under these circumstances.

9. In the case at hand, the plea of the Government is that the seniority of District Development and Panchayat Officers and the Deputy Directors etc. has been challenged before the Supreme Court and, therefore, making regular appointments was not possible. This would not come in the way of the government to deny the right of the employee, who has been asked to officiate in the post or hold the post as a temporary measure or on current duty charge. It is the admitted case that the petitioner had been asked to officiate as Deputy Director with effect from 14.3.1996 and he has been continuously posted to equivalent posts such as Addl. Deputy Commissioner (D) and that till his superannuation the officiating charge was never withdrawn. In view of the law laid down by the Hon'ble Supreme Court of India and so also the view expressed by the two Division Bench judgments of this Court, with which we are in respectful agreement. We hold that the petitioner is entitled to claim the higher pay scale in the post in which he had been asked to officiate and perform his duties till his superannuation. The respondents are directed to carry out the mathematical exercise accordingly and grant the relief (including fiscal benefits) to the petitioner in the right and correct perspective within a period of three months from the date of receipt of certified copy of this order. It shall be apposite to mention that the case of the respondents is that the seniority of the Deputy Directors and District Development and Panchayat Officers is under challenge before the Supreme Court, as and when the said matter is determined by the Supreme Court, the petitioner shall be well within his rights to stake his claim accordingly. The petition is disposed of in the above terms.

10. Order accordingly.